1968 P Cr (PLP)

A. SUBHAN CHOUDHURI, J.-The 'seven appellants before us,, namely, (1) Abdus Subhan alias Matirbap, (2) Abdul Gafur, (3) Hakimulla, (4) Faizur Rahman, (5) Abdul Matlib, (6) Shamsherulla, and (7) Abdul Bari were tried with the aid of four assessors by the Sessions Judge of Sylhet on various charges. He has convicted all the appellants under section 302/149 of the Penal Code and sentenced them to transportation for life each. He has also convicted all of them under section 148, P. P. C. and sentenced each of them to rigorous imprisonment for two years. He has further convicted appellants 4 to 7 under section 324, P. P. C. and sentenced them to rigorous imprison ment for one year each under the said section. The learned Judge has directed that the sentences passed on the appellants shall run concurrently. The prosecution case briefly is that on 5th Sraban, 1371 B.S. corresponding to 21st July, 1964 P. W. 7 Alamullah, son of deceased Montaz Ullah went to Madanpur bazar to bring Kamlas (labourers). There he had an altercation with appellant Abdul Gafur over the hiring of labourers. After he came back home the appellant party variously armed came in front of the house of the Montazullah and challenged Alamullah, his father and his brothers. They, however, did not come out. The appellant party dispersed when P. W. 6 Abdus Sattar intervened and proposed to settle the matter by a Salish (arbitration). On the following morning at 9-10 a.m. Alamullah was going to Shib Pasha situate about half a mile west of their house to bring labourers. He was chased by three persons named Abul Kalam, Sanjab Ali and Mafiz who were armed with Koach-Solas and Fikals. His father Montaz Ullah saw this and ran towards Shib Pasha raising alarm. When he went to the north-west of the tank of P. W. 2 Keramatullah the appellants armed with Koach-Solas and Fikals attacked him on the pathway. Appellant Abdul Gafur gave an order to assault whereupon appellants Nos. 2 and 3 struck him with Koach-Solas on the neck and buttock respectively. Abdul Gafur himself struck him with Fikal on the muscle of his leg. On receiving the injuries Montazullah fell down and died there. Jabanullah, another son of Montazullah, Keramat Ullah, Siddique Ullah alias Siddique Ali, Sonajan Bibi, Marium Chand Bibi and Abdur Rashid advanced when Jaban Ullah was assaulted by appellant Abdul Bari and Shamser Ullah and Abdul Matlib with Koach-Solas. Abdur Rashid was injured by Faizur Rahman with Fikal. The two women mentioned above also received injuries at the hands of the appellants. The appellants then took to their heels when they heard that Montazullah had expired. The dead body of Montazulla was thereafter taken to thana where Jaban Ullah lodged ejahar Exh. I. Police took up investigation of the case and completing the same submitted charge-sheet against all the appellants. Defence denied that there was any occurrence on 5th Sravan at 9-10 a. m. but alleged that an occurrence took place on the previous night in course of which Montazullah received injuries and died. It was contended by the defence that the appellants were falsely implicated out of enmity. All the four assessors who aided the learned Sessions Judge in the trial of the case were unanimous in their opinion that the appellants is are guilty under section 148, P. P. C. and Abdul Gafur, Abdus Subhan and Hakimullah are guilty under section 302/149, P. P. C. They found the other appellants not guilty of the charge under section 302/149, P. P. C. In the opinion of 3 of the assessors Faizur Rahman, Abdul Matlib, Shamser Ullah and Abdul Bari are guilty under section 324, P. P. C. while one of them has found Abdul Matlib, Shamser Ullah and Abdul Bari not guilty of the said charge. The prosecution case rests on the evidence of P. W. 1 Jaban Ullah, P. W. 2 Kamatullah. P. W. 3, Siddique Ali alias Siddique Ullah, P. W. 4 Sonajan Bibi, P. W. 5 Marium Chand Bibi and P. W. 9 Abdur Rashid who claim to be the eye-witnesses of the occurrence, The sum and substance of their evidence is that on 5th Sravan, 1371 B. S. at 9-10 a.m. all the appellants came out of the house of Abdul Gafur and on the order of Abdul Gafur Matirbab and Hakimullah struck Montazullah on the neck and buttock respectively with Koach-Solas and Abdul Gafur himself struck him with a Fikal on his hand. Montazullah fell down and succumbed to the injuries then and there. The witnesses advanced towards the spot where Montazullah fell down, when Jaban Ullah was struck with Koach-Solas by appellants Abdul Bari and Shamserullah and with Fikal by appellant Matlib. Abdul Rashid was injured by Faizur Rahman by means of a Fikal. Marium Chand and Sonajan also received injuries at that time. The background of the case is furnished by the evidence of P. W. 7 Alamullah. His evidence is that on 4th Sravan, he went to Nandanpur bazar for bringing labourers and there he had a quarrel with Abdul Gafur. After his return home after dusk Abdul Gafur and the other appellants came in front of their house and challenged them but they did not go out. The fact that there was an altercation and a quarrel between Alamullah and appellant Abdul Gafur at Nandanpur bazar in the evening of 4tb Sravan has not been challenged. The eye witnesses to the occurrence mentioned above have also stated that after nightfall on 4th Sravan the appellants came in front of the house of Montazullah and challenged him and his sons but they did not stir out from their house. There is evidence to the effect that the appellants returned back to their houses in the evening of 4th Sravan at the intervention of P. W. 6 Abdus Sattar, a member of the Union Council. P. W. 6 has stated that that evening the appellants challenged Alamullah, his father and brothers when he came and intervened and sent them away on promise of a Salish. This witness has further testified to the fact that on the following day at 10 a.m. he went on hearing Golmal and saw Jaban Ullah and others carrying Montazullah to thana and they heard of the occurrence from Jabanullah. This Witness, however, did not depose to the incident of 4th Sravan in the Committing Court and he explained in his cross- examination that he did not refer to the night incident before the committing Court as he was not asked about it. There is also supporting evidence of P. W. 8 Faizullah. He has testified to the fact that while he was in his field to the north west of the house of Keramatullah he saw Alamullah being chased by Mafiz, Abul Kalam and Sanjab who were found with Fikals. Azamuddin of Shib Pasha intervened and the chasers went back. A little after that he went and saw the, dead body of Montazullah Chowkidar and heard about the occurrence from Jaban Ullah. Defence examined 2 witnesses to support its case. D. W. 1 Ismail has deposed that on Monday the 4th Sravan, 1371 B.S. the occurrence took place and P. W. 3 Siddique reported to him at dawn on Tuesday that Montazullah had been murdered. D. W. 2 has stated in his evidence that on Monday afternoon Alamullah was seen threatening Abdul Gafur with a lathi in hand at Nandanpur bazar and police of Nandanpur outpost settled the dispute. When he (the witness) was returning home from the bazar he heard a row and went to the house of Montazullah. There he found Montazullah lying with injuries on his neck. He then returned home and on the following morning before sun-rise he heard that Montazullah had expired. The evidence of the two D. Ws. does not bear scrutiny. D. W. 1 has stated in his cross-examination that the inmates of the house of Montazullah told him that some persons killed him at night over the troubles of Kamala. He further stated that he came to know later who actually killed him but he did not go to the investigating officer to tell him that the complainant had started a false case. When he met Abdul Gafur on Tuesday morning he did not ask him as to how Montazullah met his death and by whom he was killed. In fact he did not tell anybody that the occurrence took place on Monday night. Although D. W. 1 has specifically stated that P. W. 3 Siddique reported to him on Tuesday at dawn that Montazullah had been murdered, no such suggestion was given to P. W. 3 when he was cross-examined by the defence. Had it been a fact that Siddique actually informed D. W. 1 at dawn on Tuesday that Montazullah had been murdered as alleged by D. W. 1, the defence would have dared to suggest to Siddique that he made such statement to D. W.

1. Thus the evidence of D. W. 1 on this line appears to be an after-thought. Besides, the conduct of D. W. 1 as betrayed by his own admission goes to show that he did not come to speak the truth but to support the defence. Had he actually known from reports that Montaz ullah had been murdered at night he would certainly have asked as to how and by whom he was murdered. That he did not tell anybody about the alleged occurrence on Monday night is clearly indicative of the fact that he has no regard for truth and he deposed only to stand the defence in good stead. Similar is the case with D. W. 2; he claims to be a Khalato Bhai (cousin) of the deceased Montazullah. This witness has also stated that he did not ask the deceased who was still alive as to who injured him. His evidence that be saw only one injury on the neck is belied by the medical evidence inasmuch as P. W. 12, the doctor who held the post-mortem examination found as many as three punctured wounds on the dead body. Had it been a fact that D. W. 2 saw his Khalato Bhai in an injured' condition his natural conduct would be to examine the whole body and find out how many injuries were caused to him and also to ask him as to who were responsible for causing the fatal injury. The conduct of both witnesses for the defence is such as leads us to irresistible conclusion that they are witnesses who came not to speak the truth but to help the defence. It has been urged by Mr. Ahmadur Rehman Khan, the learned Advocate for the appellants, that the witnesses are all inter-related and no reliance should be placed on their testimony. Relationship of witnesses with the deceased, direct or indirect, does not make their evidence unacceptable only on that ground. The fact remains that these are all competent and natural witnesses, P. Ws. 1, 2, 3 and 7 have all deposed to the facts of the case in a thoroughly consistent manner and their evidence does not suffer from any infirmity. Their evidence is borne out by the medical evidence. P. W. 12 Dr. A. Hakim who was Assistant Surgeon, Habiganj Civil Hospital at the relevant time held autopsy on the dead body of Montazullah and found the following injuries on the dead body:- (1) One punctured wound on the left side of the neck 2" below the left ear ' x ' x bone deep directed downwards forward and medically. (2) One punctured wound on the left leg " x 1/3" x muscle deep. (3) One punctured wound on the left genitial region ' x " x muscle deep. In the opinion of this doctor death was due to effects of the injuries which were ante-mortem and homicidal in nature. His evidence shows that at the time of the post-mortem examination Rigormortis was present on the dead body. In his cross examination he stated that Rigormortis disappears usually within 24 hours and in hot climate it disappears earlier. He also stated that disappearance of Rigormortis depends upon climates. It will be noticed that the post-mortem examination was held by this doctor at 11-45 a. m. on 22-7-64, i.e. about 25/26 hours after the occurrence as asserted by the prosecution. If the death of Montazullah had taken place c n the previous night, then there would be a gap of more than 36 hours between the death and the post-mortem examination. The fact that Rigormortis was present on the dead body at 11-45 a.m. on 22-7-64 is a major factor in the consideration of the point as to whether he was killed on the previous night or on the morning of 21st July 1964. The medical evidence referred to above lends strong support to the evidence of the prosecution witnesses that the occurrence took place at 9-10 a.m. on 21-7-64. The prosecution case that P. W. 1 Jaran Ullah, P. W. 9 Abdur Rashid and P. Ws. Sonajan Bibi and Madum Chand Bibi were injured by appellants 4 to 7 when they wanted to go to the rescue of Montazullah finds strong support in the evidence of P. W. 13 Dr. A. B. Jomaluddin Ahmed who examined Jaban Ullah and Abdur Rashid on 21-7-64 and 4-30 p.m. and also the two women on 25-7-64 at 3 p.m. He found as many as three punctured wounds on the body of Jahan Ullah and one punctured wound on the body of Abdur Rashid which were all fresh. Sonajan and Marium Chand being females would naturally feel shy of appearing before a doctor to expose their body in order to find out injuries caused to them. The delay of four days in their examination does not matter much. It may be men tioned here that the injuries of the women were caused within five days. The presence of these four witnesses at the time of occurrence cannot, therefore, be doubted. It is an outstanding fact which leads to the conclusion that these four injured persons witnessed the occurrence. It is true that the names of Sonajan and Marium Chand were not mentioned in the F. I. R. but that does not raise any doubt regarding their presence at the time of the occurrence, particularly having regard to the fact that they sustained injuries in the occurrence. The informant was naturally thinking of naming male persons who were present at the occurrence and ignored the presence of the wife and daughter of the deceased. The omission to mention their names in the F. I. R. is thus of no consequence. It has been urged on behalf of the appellants that 'some of the material witnesses have not been examined by the prosecution. P. W. I, the complainant, has given reasons for non-examination of some of the witnesses stating that P. Ws. Azem, Rafique and Manfar have been gained over and Noor Mohammad is Bhaira of appellant Abdul Bari and Hakimullah is Chachto Bhagnipati of Abdul Bari. It has transpired in his cross-examination that these witnesses came to the spot after the occurrence. This shows that they were not eye-witnesses of the occurrence. The investigating officer, P. W. 14, has stated that Hakimullah, Mafirullah, Noor Mohammad and Atabullah are not charge sheet witnesses and that besides Atabullah the other three persons did not appear before him although he personally went. It is obvious that these persons did not like to be examined by the investigating officer as they were interested in the defence. The testimony of P. W. 6 is that at his intervention on the previous evening the appellants left on being assured of a Shahs. This is more in consonance with the prosecution case as a whole than the story set up by the defence through D. Ws. 1 and

2. It may be -mentioned that P. W. 6 Abdus Sattar is a Member of the local Union Council and as such a respectable man of the locality and the role played by him was quite natural and probable. In view of the overwhelming evidence of as many as six eye-witnesses who have received corroboration from other wit nesses we have no hesitation in coming to the conclusion that the occurrence did actually take place at 9-10 a. m. in the morning of 5th Sort-an, 1371 B. S. as asserted by the prosecution and that Montazullah was not injured in the previous evening. Upon examination of the evidence already referred to we are further convinced that all the appellants took part in the occurrence and acted in furtherance of their common object of assaulting Montazullah and others. Mr. Ahmadur Rahman Khan, the learned Advocate for the appellants, submitted that the conviction of the appellant under section 30 2/149 c f the f akistan Penal Code is not tenable in law. He, however, failed to give any cogent reason for coming to the conclusion that this conviction is unsustainable. We have ourselves scrutinised the charge under the aforesaid section. It runs thus: "That you, on or about the 21-7-64 (5th Sraban 1371 B.S.) at Balandkandi, P. S. Bahubal were member of an unlawful assembly, the common object of which was to assault deceased Montazullah and others and that while you were member Abdul Gafur and Matirbap and Hakim committed death of Mantazullah and thereby under section 149, P. P. C. guilty of committing the said death and offence punishable under section 302/149, P. P. C. and within committing of Sessions." This charge is undoubtedly far from satisfactory. The words "committed death of Montazullah" are vague and indefinite and do not denote an offence under section 302 of the Pakistan Penal Code. The proper charge would have been to mention in place of the aforesaid words "committed murder by inten tionally causing the death of Montazullah

". The defective nature of the charge is thus manifest. The question that confronts us is whether the conviction is illegal and unsustainable on that account or whether the defect is cured under section 537 of the Criminal Procedure Code. Section 537 of the Criminal Procedure Code lays down, inter alia, that no 'finding or sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account- "(a) of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings . . . unless such error, omission, irregularity, or misdirection has in fact occasioned a failure of justice." The explanation appended to this section lays down:- "In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings." The test that may be applied in considering whether a particular infringement of the provisions of the Code does or does not fall within the purview of section 537 appears to be whether the error goes to the whole root of the trial, whether it vitiates the proceedings, whether the Court assumed jurisdiction which it does not possess, and whether it has broken the vital rules of procedure. In this connection a distinction should be made between a positive enactment by the Code that a certain trial shall not take place and a positive enactment that in the course of such a trial certain detailed procedure should be follow ed. Both are imperative provisions. But still the one is a different thing from the other. In the former case an infringement of the enactment amounts to an assumption of jurisdiction and vitiates the trial from the very beginning. In the latter case, an infringement merely amounts to an error, omission or irregularity in the proce dure adopted in the course of the trial, and this is curable under section 537, Cr. P. C. The crucial test to be applied is whether the accused had a fair trial in spite of the transgression of the prescribed rule of procedure. Even if there is an illegality the High Court will not interfere except in case of failure of justice. A few reported decisions in this connection may be referred to here. In the case of Teeka and others and Kabool and others v. The State of Uttar Pradesh (A I R 1961 S C 803) it was held by the Supreme Court of India as follows:- "Though section 149 of the Indian Penal Code is mentioned in the charge, it is not expressly stated therein that the members of the assembly knew that an offence under section 307 of the Indian Penal Code was likely to be committed in prosecution of the common object of that assembly. Under section 537 of the Code of Criminal Procedure, no sentence passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the charge, unless such error, omission or irregularity has in fact occasioned a failure of justice. The question, therefore, is whether the aforesaid defect in the charge has in fact occasioned a failure of justice. The accused knew from the beginning the case they had to meet. The prosecution adduced evidence to prove that the accused armed themselves with lathies and entered the premises of the degree-holder to recover their cattle and gave lathi blows to the inmates of the house causing thereby serious injuries to them. Accused had ample opportunity to meet that case. Both the Courts below accepted the evidence and convicted the accused under section 307, read with section 149, P. P. C. The evidence leaves no room to doubt that the accused had knowledge that grievous hurt was likely to be caused to the inmates of the degree holder's house in prosecution of their common object, namely, to ` recover their cattle. We are of the opinion that there is no failure in this case and that no case has been made out for interference." In the case of Gustad Maneckji Shekdar v. The State (P L D 1959 Dacca 756), a Division Bench of this Court held: "It is true that the charge is not happily worded but from a careful reading of the to charges we are of the view that the accused had clear notice of the fact that he abetted by conspiracy the two other associates of his in acquiring foreign exchange and not disposing of the same to any autho rised dealer. In the facts of this case we do not think that the appellant can make a grievance that he had no notice of the charge of abetment by conspiracy." In the case of Hazrat Jamal and others v. The State (11 D L R 84 (S C)), the Supreme Court of Pakistan found that the charge framed against the appellants omitted to mention that the death of the victim had resulted in consequence of the injuries caused to him with gun shots and also failed to specify in so many words that the offence committed was one of murder. After referring to certain facts and circumstances showing that the accused knew the charge they had to defend themselves against, his lordship Md. Munir, C. J. observed:- "In the circumstances, we are convinced that the appellants could have been under no illusion as to the charge they had to defend themselves against. This view is reinforced by the fact that at no stage during the trial exception was taken to the charge." It is important to point out that the provisions of section 537, Cr. P. C. are mandatory and the High Court cannot interfere without finding that there had been a substantial error or failure of justice due to the irregularity in course of the trial. It was never the intention of the Legislature that persons who committed offences should escape punishment on technical ground which did not affect the merit and substantial justice in the case. Where the law and the section of the law are mentioned in the charge, the omission of details is not so material as to prejudice the accused. In the instant case the appellants knew from the very beginning of the trial what charge they were required to answer. The charge under section 302/149, P. P. C. was explained to the appellants and thereafter evidence was led by the prose cution to prove that the appellants formed an unlawful assembly with the common object of assaulting Montazullah and others and in pursuance of that common object at least three of them caused fatal injuries which resulted in the instantaneous death of Montazullah. Finally the appellants were examined under section 342, Cr. P. C. and their attention was drawn to the material portions of the evidence at that time. Thus the appellants knew fully well the charge they were to meet and there is no reason whatsoever for any misconception. Besides, no exception was taken to the defect in the charge at any stage of the proceeding and it is too late now to canvass this point and to contend that the conviction under section 302/149, P. P. C. is not sustainable on account of the defect in the charge. There is no denying the fact that the appellants were tried and convicted and sentenced by a Court of competent jurisdiction. The slight defect in the charge does not go to the very root of the case. It is an error or omission which has not entailed a failure of justice. The contention that the conviction of the appellants is not sustainable in view of this defect in the charge is thus without substance. Another point convassed by Mr. A. R. Khan is that only those of the appellants who took part in the assault of the deceased could be held liable for the offence under section 302/149, P. P. C. but not the other four appellants who did not take part in assaulting him. We are unable to accept this contention either. Section 149 does not create a new offence but provides for vicarious liability for offences committed by others in further ance of the common object. Under this section the liability of the other members except those who assaulted the decease for the offence committed during the continuance of the occurrence rests upon the fact whether they knew beforehand that the offence actually, committed was likely to be committed in prosecution of the' common object. Such knowledge may be reasonably inferred from the nature of the assembly, arms of behaviour at or before the scene of action. In order to bring a case under this section the act must be done with a view to accomplish the common object of the unlawful assembly is one which the accused knew would be likely to be committed in prosecution of the common object. In other words, the resultant consequence of the act of one or more persons of the unlawful assembly must be shared by all the members of the unlawful assembly. This has been best illustrated in the case of The Crown v. Ramji Lal and others (I L R 1940 Lah. 554). In that case the appel lants were charged under section 302 of the Penal Code read with sections 149, 366, 365, 149 and 323 of the Code that being members of an unlawful assembly on the 6th of March 1938, at village Kherki Daula, in the prosecution of the common object of which they murdered Kishan Lal and abducted his wife Mst. Manbhari. The trial Court found the case as presented by the prosecution proved but since it was alleged that only Kishori, Umrao and Amin Chand were directly concerned with the murder of Kishan Lal and since it could not, in the opinion of the learned Additional Sessions Judge, be established which of these three accused gave the fatal blow he convicted them under section 326 only and sentenced them to six years' rigorous imprisonment. The other four accused were held not guilty under the aforesaid section. He, however, con victed them under sections 323 and 342 of the Penal Code and passed sentence of rigorous imprisonment for 6 months each. In that case an appeal was preferred by the Crown against the order, of acquittal. Young, C. J. delivering judgment of Divi sion Bench referred to certain decisions and finally observed as follows: "There are other authorities of this Court which have more than once overruled the view that where a number of accused participated in beating a man to death under circumstances which amount to murder under section 302/149, Indian Penal Code, the conviction should be under some lesser section than section 302, Indian Penal Code, merely because it cannot be said which accused is responsible for the fatal blow " The Court held that all the accused except one committed an offence under section 302/149, P. P. C. and convicted them accordingly. Two of the accused in that case were sentenced to death and the rest except the one acquitted were sentenced to transportation for life. The facts of this case are similar to those of case just referred to. The principle of law enunciated in that case in fully applicable to the present case. We, therefore, uphold the conviction of all the appellants under section 302/149 of the Pakistan Penal Code. The conviction under section 148, P. P. C. of all the appellants is also upheld inasmuch as there is ample evidence on record that every one of them was armed with a deadly weapon and took part in the occurrence. The charge under section 324 of the Code has also been brought home to the appellants 4 to 7 by the evidence of the eye-witnesses which we have accepted as true and correct. The result is that the appeal is dismissed and the order of conviction and the sentences passed on the appellants is affirmed. ABDUL MOUDUD, J.-I agree. Appeal dismissed.